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DUI Less Safe vs. DUI Per Se

In Georgia, a person may be charged with DUI Per Se, DUI Less Safe, or both. Many people do not understand the differences between these two charges. Essentially, the elements that the State must prove in order to secure a conviction are completely different. Note that this post is most relevant to cases involving alcohol, including DUIs and Boating Under the Influence (BUI) cases. Click the links for more information about DUI Drugs, DUI Marijuana, or DUI Prescription Drugs.

DUI Less Safe

What does DUI Less Safe mean in Georgia? O.C.G.A. §40-6-391 is Georgia’s DUI statute, and it has several subsections. Subsection (a)(1), the Less Safe subsection, states:

“A person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.”

A conviction for DUI Less Safe does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive, and circumstantial evidence may be sufficient to meet this burden of proof. State v. Young, 334 Ga.App. 161, 778 S.E.2d 402 (2015).

In many cases, this circumstantial evidence is generated from many factors. These may include the person’s speech patterns, their overall demeanor, and their appearance. In DUI police reports, officers frequently note “slurred speech,” “bloodshot, watery eyes,” or “difficulty exiting the vehicle.” They may also note an odor of alcohol.

A person’s performance on Standardized Field Sobriety Tests may also provide additional evidence of impairment. You can read more about these tests and how they work here. In theory, these tests measure a person’s ability to follow directions as well as their motor skills, the logic being that a person who cannot follow directions or whose motor skills are compromised is not a safe driver.

Here are some scenarios that can result in a person being convicted of a Less Safe DUI:

  • An officer observed signs of impairment but the driver refused the State-Administered Chemical Test.
  • An officer observed signs of impairment but the results of the State-Administered Chemical Test were suppressed from evidence after a successful suppression hearing,
  • A State-Administered Chemical Test was conducted, but the test results show a Blood Alcohol Concentration of under 0.08 grams. Learn more about Blood Alcohol Concentration and how it is calculated here.

DUI Less Safe is commonly charged when a person refuses to submit to a state-administered chemical test, when test results are flawed for some reason, or test results are suppressed from evidence at trial.

DUI Per Se

DUI Per Se is a bit more straightforward than DUI Less Safe. Subsection (a)(5) of Georgia’s DUI statute states:

“A person shall not drive or be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.”

A conviction for DUI Per Se, therefore, generally requires a scientific test proving that a person’s Blood Alcohol Level was above the legal limit, which is 0.08 grams for an adult. A conviction for DUI Per Se requires no specific proof of impairment and does not (legally) create a presumption of intoxication. According to the law, it merely prohibits certain conduct (i.e. driving when your BAC is over 0.08 grams).

Remember, you do have the right to refuse a chemical test of your blood, breath or urine. A refusal, however, will likely result in a license suspension, and your refusal can be used against you at trial. It should, therefore, be considered carefully. Read more about Georgia’s Implied Consent Law here.

Georgia DUI Penalties

DUI Per Se and DUI Less Safe do have one important similarity, however:  the penalties for conviction are the same. Many people believe that Less Safe is less serious than Per Se DUI. This is a very common misconception. Regardless of whether the case is charged as a Less Safe DUI or a Per Se DUI, the penalties are identical and get more serious depending on the number of prior DUIs a person has. You can read more here:

Still have questions about DUI Per Se and DUI Less Safe?

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